The Other Side of Copyright Infringement Violation

A s you may have read in this recent article, I was the subject of a demand letter — which accompanied an invoice for $8,000.00 — that accused me of “willful photography copyright infringement”…

…but one fact which I had not imparted is that I cannot tell you how many times work which I have created was copied without my permission or authorization. I have had entire articles copied word for word — along with photographs which I created — and pasted elsewhere with no attribution and not a single link to my original work.

The Other Side of Copyright Infringement Violation

I present to you one example of an article which was copied — word for word — along with photographs taken by me. The subject of the article is 11 Tips and Tricks for Sleeping Aboard Airplanes, of which the original version was written by me on Saturday, August 20, 2016. Notice that the date of the copied article is August 21, 2016 — the very next day.

The only saving grace — if it can be called that — is a byline with my name was added; but that is below a byline by an anonymous person which uses the same name as the name of the weblog, which constitutes plagiarism. A blatantly outright falsehood that the article was written by that anonymous person is also below the conclusion of the article. Also, links to my other articles posted in that article were preserved.

No fewer than six of my photographs were used in the plagiarized article without my permission — and none of them are considered fair use, which is “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.”

Does this mean that I can send a demand letter for $8,000.00 for each of the photographs plus additional money for the plagiarized article?

I am counting that potential $50,000.00 now.

Readers of The Gate have asked in the past why I place a copyright notice along with every photograph taken by me which accompany articles written by me. The answer is demonstrated perfectly by the anonymous plagiarist, who thankfully preserved the copyright notes along with the photographs.

A cease and desist letter is typically the first communication to the violator; and that usually works in having the unauthorized content removed. I do not threaten legal action or demand payment of a ridiculous sum of money as my opening communication. If the subject of my request is ignored or denied, then I can see the use of a demand letter written in stronger lexicon.”

Summary

Unfortunately — chiefly due to advances in technology — we live in an era where duplication of work is lossless with generally no degradation in quality; and use of the works of someone else is easier than ever. Simply perform a search of images on the Internet with certain key words on a specific topic, and voilà: there are hundreds of images from which to choose and take instantly.

As a business owner, writer, artist, designer, photographer, actor and videographer — I have even dabbled in writing and composing my own music and lyrics over the years — no one is more adamant about protecting the rights of people who produce creative content than me; and I will vehemently defend the rights of the owners of those works to ensure that they are properly compensated for the use of their work…

…but to use this protection in a way which is legally questionable — such as with the intent for committing a form of extortion or scare tactics to coerce a target into volunteering to reach a monetary settlement — at best is deplorable, inexcusable and unacceptable.

As in my recent case where I was outright accused of “willful photography copyright infringement” on the invoice which accompanied the demand letter — I am not an attorney and therefore not certain if that is considered libel — an unusual chain of events occurred which led to the issue. Errors and honest mistakes by anyone in the process can be committed. I personally believe that a firm cease and desist letter — not a threatening demand latter — should be the first communication to someone who is accused of infringing upon the copyrighted works of others.

In other words, there needs to be a sensible and fair balance regarding the issue of copyright infringement — as defined and outlined succinctly by the copyright office of the federal government of the United States — so that works are vehemently protected for the sake of creators, owners and licensees; but without resorting to the employment of egregious methods to satisfy a greed which potentially could result in generating more than enough compensation for the people who seek “justice” for copyright infringement.

Graphic ©2016 by Brian Cohen.

14 thoughts on “The Other Side of Copyright Infringement Violation”

  1. GT says:

    So, I’m guessing you’re intentionally articulating the perspective of your accuser or, perhaps, you’re wrapped in the delicious irony to the point that you don’t realize that that is what you’ve done?

    1. Brian Cohen says:

      That comment was really intellectual and witty, GT.

      I am going to take a note of it so that I may willfully plagiarize it for future use…

      …not.

  2. Carl P says:

    Also not an attorney, but my understanding is libel needs to be in published media (not in private correspondence, like the letter to you). And I don’t think you publishing it would count.

    I know you did the “open letter”. Did you actually send a reply directly to them?

    1. Brian Cohen says:

      Yes, Carl P..

      There has been an exchange of e-mail messages with the involved parties; but I am unaware of a resolution as of yet.

      I know that my publishing the information would not be considered libel.

  3. Jon Sievert says:

    It’s true that the creator of a work holds a statuatory copyright from the moment it is created, However that copyright is virtually useless unless you register it with the copyright office. Otherwise, all you can collect is the amount of revenue you can prove you lost as a result of the violation. In 99.9% of the cases it would cost you much more to sue than you could ever hope to collect. If it is registered, however, you can sue for damages, which can be signicant, especially if can show willful violation.

    1. Brian Cohen says:

      Thank you for the useful information, Jon Sievert. I appreciate it.

  4. 310 says:

    Hi, Brian —

    I had something similar happen to me. Downside: lost a several thousand dollars in settlements and lawyer fees over some VERY nitpicky things on Creative Commons (NEVER use them) and associated trolls who have nothing better to do than leech people. Upside: I have a couple of great lawyers who can help on both sides of the coin. Email me if you’d like their info or any other info I can pass along.

    1. Brian Cohen says:

      I am sorry to learn of what happened to you, 310; and I appreciate the offer. Thank you.

      One reader commented in the other article “Finally – have you not heard of Creative Commons?” Are you able to expound in general on your experience with Creative Commons as to why you strongly recommend not to use them?

      Anyone who follows The Gate knows that I attempt to use my own photography as much as possible with the articles which I write.

      1. 310 says:

        First — I’m not a lawyer, though I’ve gotten to know a few.

        People who post images to CC / Flickr can change the licensing permissions on a whim with little or no notice. If you have a proof you licensed the photo when it was designated for commercial use, that will help your case, should someone change the license and decide to litigate

        I know of one photographer who grants people free license to use his photos — even for commercial use. However, the required attribution is VERY Simon Says. In other words, you can’t just put “Photo credit: John Doe.” It has to be “Photo credit: John Doe, [DD-MM-YYYY picture was taken], [location where picture was taken], [photographer’s website], [photographer’s hometown].” If ONE of these criteria is missing in the credit –or you even neglect to note a crop — you’re liable for copyright violation. I learned that the hard way and lost a lot of money. Should I have known better? Yes. Was it an innocent mistake on my part? Yes. Would I have lost in court? Yes. With copyright, you’re guilty until proven guilty.

        There are plenty people who make a lot of money setting these types of traps. Even (most) copyright attorneys hate these types of trolls because they make all copyright holders look bad.

        There are lawyers who specialize in Creative Commons issues. That ought to tell you something.

        Also, to add to what John Sievert said: I used to work for a company that deals with high profile people. When a person’s likenesses was used without permission — which happened somewhat regularly i.e. bootleg merch — a cease and desist was the general MO unless there was some sort of libel and/or the offending product generated huge income for the offender. Lawsuits are so expensive and time consuming — and run the risk of frivolous countersuits, as well.

        The great thing about you using your own pictures is that 1) they’re free and 2) you can SEO them for more traffic to your site.

  5. I just read ‘rant’/open letter. That was a fun read. What a complete scammer. I thought you were being a bit harsh at first, until I realized what they were doing exactly. I hope you eventually end up naming and shaming them!

  6. Andy says:

    A little off subject, but you might want to change your link to the infringing article to a “no-follow” link.

    1. Brian Cohen says:

      I wrestled with the thought of having a live link, as it would drive traffic over there, Andy; but I also wanted to show proof of that article — so what I thought I would do is simply leave the link for a limited time before disabling it…

      …but I have now formatted the link to a nofollow link as per your excellent suggestion. Thank you.

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